October 12, 2012 "Information
Clearing House"
- - The Wall Street Journal recently
reported on debates within the Obama administration
about the legality of the drone war in Pakistan. State
Department legal adviser Harold Koh, the former dean of Yale
Law School and
even more former darling of the left for his criticisms
of the Bush administration’s aggressive theories of
executive power, plays a prominent role in them. Koh
apparently concluded that the drone war “veers near the
edge” of illegality but does not quite tumble over it.

That
is a questionable judgment. The U.N. Charter permits
countries to use military force abroad only with the
approval of the U.N. Security Council, in self-defense, or
with the permission of the country in which military force
is to be used. The U.N. Security Council never authorized
the drone war in Pakistan. Self-defense, traditionally
defined to mean the use of force against an “imminent” armed
attack by a nation-state, does not apply either, because no
one thinks that Pakistan plans to invade the United States.
That leaves consent as the only possible legal theory.

But
Pakistan has never consented to the drone war. Publicly and
officially the country has opposed it. Before the raid that
killed Osama bin Laden in May 2011, the CIA sent a fax every
month to Pakistan’s Inter-Services Intelligence agency that
would identify the airspace in which drones would be sent.
The ISI would send back an acknowledgment that it had
received the fax, and the U.S. government inferred consent
on the basis of the acknowledgments. But after the raid, the
ISI stopped sending back the acknowledgments.

Now
what to do? The administration argues that consent can still
be inferred despite the unanswered faxes. The reason is that
“the Pakistani military continues to clear airspace for
drones and doesn’t interfere physically with the unpiloted
aircraft in flight”—meaning that Pakistan does not shoot
down the drones or permit private aircraft to collide with
them.

We
might call this “coerced consent.” Consider it this way: You
walk into a jewelry store and the proprietor announces that
he will deem you to have consented to the purchase of a
diamond tiara for $10,000, despite all your protests to the
contrary, unless you use physical force to stop him as he
removes your wallet from your pocket. Imagine further that
he’s 7 feet tall and weighs 400 pounds. This is what a
Pakistani official meant when he told the Wall Street
Journal that shooting down a drone would be “needlessly
provocative.” He meant that such an action would risk
provoking retaliation from the United States, a risk that
Pakistan cannot afford to take. Because Pakistan lies
prostrate and endures the pummeling rather than makes a
futile effort to stop it, it is deemed to consent to the
bombing of its own territory.

But
don’t blame government lawyers like Koh for devising this
theory. International law lacks the resources for
constraining the U.S. government. Koh knows this now if he
did not before. Since he built his academic career on the
claim that international law can and should be used to
control nation-states and harshly criticized the Bush
administration for violating international law, this must
have been a bitter pill to swallow. (Though he has swallowed
so many bitter pills that perhaps he has lost his sense of
taste: The man who told the Senate at the end of the Bush
administration that the United States must “unambiguously
reassert our historic commitments to human rights and the
rule of law as a major source of our moral authority” has
backed away from his earlier opposition to expansive war
powers, targeted killing, military commissions, and military
detention.)

The
weakness of international law governing the use of military
force goes back to the signing of the U.N. Charter in 1945.
The founders understood that a simple rule prohibiting the
use of military force except in self-defense, or with the
consent of another state, would not be adequate for
regulating war. But they could not draft a code complex
enough to anticipate all the contingencies that might
justify war. Instead they set up the Security Council and
reasoned that this body could determine when war might be
justified for purposes other than self-defense. But the
Security Council was frozen first by the Cold War rivalry
between the United States and the Soviet Union, and then the
cold peace rivalries between the United States, Russia, and
China. It has authorized only two wars since its inception
(the Korean War and the first Iraq War; it also
retroactively approved the U.S. invasion of Afghanistan in
2001).

Needless to say, there have been dozens of wars since 1945.
Participants have included countries as diverse as China,
the Soviet Union, India, Pakistan, the United Kingdom,
Vietnam, Iran, Iraq, Egypt, Israel, and Argentina. Even the
supposedly pacific European countries participated via NATO
in several of these wars. The United States has on several
occasions justified wars (for example, in Kosovo in 1999,
Libya in 2011) as humanitarian interventions—a principle
that can be found nowhere in the U.N. Charter but enjoys
some international support. In other cases, including
current drone operations in Pakistan, the United States has
invoked a new idea of the “unable or unwilling” country, one
that outside powers can invade because that country cannot
prevent terrorists located on its territory from launching
attacks across its borders. But most U.S. wars can be fit
into these two categories only with difficulty. Those wars
are undertaken to shut down a destabilizing or dangerous
regime, one that typically has used violence to keep itself
in power. One can put the second Iraq War in this category,
as well as the Panama intervention in 1990, the
interventions in Yugoslavia in the 1990s, and the
intervention in Granada in 1983. During the Cold War, the
United States also often evaded the U.N. prohibition on
interstate war by funding and training a domestic
insurgency.

The
U.N. Charter does not permit states to use military force to
unilaterally address long-term threats in this way. It is
too easy for states to characterize other states as
long-term threats regardless of whether they are. And yet
this omission rendered the charter unworkable, because all
states must take long-term threats seriously, whether or not
the members of the Security Council can be persuaded or
bribed to agree with them.

Government lawyers like Koh must scramble to revise their
interpretation of international law so as to keep up with
the new events that justify, in the eyes of the president, a
military intervention. The “coerced consent” doctrine, the
“unable and unwilling” doctrine, and the exception for
humanitarian intervention all whittle away at whatever part
of the law on United Nations use of force blocks U.S. goals.
If the United States ever decides to invade Iran in order to
prevent it from acquiring nuclear weapons, expect a new
doctrine to take shape, perhaps one that emphasizes the
unique dangers of nuclear weapons and Iran’s declared
hostility toward a nearby country.

It is
curious that there is not a global outcry about the
illegality of the wars in Pakistan or Libya, as there was
about the illegality of the recent war in Iraq, which the
Bush administration dubiously justified on the basis of
Iraq’s violations of earlier U.N. resolutions that had
suspended hostilities after the first Iraq War. Maybe the
world doesn’t care as much about Pakistan, which has no oil.
Or maybe people have finally realized that the United
States, which has been almost continuously at war since the
collapse of the Soviet Union, will not be swayed by legal
arguments. A powerful army is too useful not to use, whether
you are a Republican president or a Democratic one.

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